09.03.

2021
Kayli Burke
Year 11 Legal
Customary Law Essay
Aboriginal and Torres Strait Islander people have one of the oldest living cultures in the
world. However, there is no single Aboriginal nation – approximately 500 different nations,
many different dialects and each developed their own distinct laws.

The Latin term terra nullius means ‘land belonging to no-one’ was a term the British used to
claim the land of Australia. The British believed that they could use this term because they
saw signs that meant that Australia was not colonized or inhabited by anyone. Aboriginal
and Torres Strait Islander people did not believe that the land was not owned, but rather
that the land owns us which is why certain areas of land were not occupied since this is a
guardianship collection key feature of customary law and this lack of ownership on behalf of
the British was the main argument as to why they felt as if they could claim Australia as
terra nullius.

In the textbook, customary law is defined as “principles and procedures that have
developed through general usage according to the customs of a people or nation, groups of
nations, and are treated as obligatory”. Aboriginal and Torres Strait Islander law is based on
tradition, ritual and socially accepted conduct.  It has many distinct characteristics, including
a strong spiritual base - the Dreaming, important family and kinship ties, ritual and oral
traditions and the use of mediation and unique sanctions to settle disputes.

A characteristic of aboriginal customary law is a strong spiritual base - the Dreaming. The
Dreaming is the core for all Aboriginal and Torres Strait Islander laws. It holds and explains
the stories they teach and the creation of the land, animals, plants, people and sky, which
relates to the history of the Indigenous Australians. Aboriginal and Torres Strait Islander
people rather the use of oral history than written documentation to keep the secrecy of
how a community’s laws relate to the Dreaming. The laws differ between each Australian
Indigenous community.

Another feature of aboriginal and customary law is important family and kinship ties. The
importance of family and kinship ties that have come from customary law has been
developed and has evolved for over thousands of years. Customary law enforces the
responsibility of the land to the community that lives there rather than leaving the
responsibility to an individual. This not seen as ownership but rather the caring for the
environment by the group. The oral teachings allow for the group to be taught their history
through the rituals, stories, songs and dances, as well as word of mouth that allows them to
remember their community’s history.
Ritual and oral traditions also play an important part of aboriginal customary laws, as they
are not written down. Laws are passed on by, and to, the appropriate people and reinforced
often through dance and storytelling. These sacred ceremonies to Aboriginal and Torres
Strait Islander people are not to be intruded by people outside of the community. These
ceremonies explain thousands of years of community history concepts such as creation of all
things, tribal boundaries, family relationships, cultural practices and forbidden acts.

When customary laws are broken or disputes arise within traditional Aboriginal and Torres
Strait Islander groups, the family and the community are involved. Mediation is, as defined
in the textbook “a form of alternative dispute resolution designed to help two (or more)
parties, in the presence of a neutral third party, to reach an agreement”. The maintaining of
relationships is quite important in Aboriginal and Torres Strait Islander communities, and
this is where mediation has the best result to maintain these relationships for the passing on
of traditional law. Sanctions, as defined in the textbook “a penalty imposed on those who
break the law”. A sanction is directed by the elders when someone within the community
has breached sacred law or offences against property or people.

Legal recognition of customary law for Aboriginal and Torres Strait Islander people has
evolved over the last 20 years with imbodied aspects used in Australian law. Customary
law’s use of mediation and conciliation to resolve disputes are incorporated into criminal,
consumer and employment law. When Aboriginal or Torres Strait Islander people commit a
crime, customary law is sometimes applied to sanction them. Customary law is completely
enforced, elders will consult with those maintaining and enforcing the law in areas where
the traditional lifestyle is fully applicable.

Therefore, Aboriginal and Torres Strait Islander customary law adds distinct elements to the
law that exists in Australia today. Customary law has provided guidance and reassurance of
Australian Indigenous people’s rights and traditions within current Australian society.